HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.114 of 2017
Appellant : Habibullah son of Khadim Husain,
through Mr. Habib-ur-Rehman Jiskani,
Advocate.
Respondent : The State through Mr. Abdullah Rajput,
Deputy Prosecutor General, Sindh.
Complainant : None present.
Date of hearing : 06.11.2019
Date of Judgment : 06.11.2019
JUDGMENT
Abdul Maalik Gaddi, J.– Appellant Habibullah son of Khadim Husain was tried by the learned Additional Sessions Judge, Malir-III, Karachi, in Sessions Case No.562 of 2016 (re. State v. Habibullah son of Khadim Hussain), arising out of Crime No.128 of 2016 registered at police station Sohrab Goth, Karachi, under Section 395, PPC. After full dressed trial, by judgment dated 01.3.2017, the appellant was convicted under Section 395, PPC and sentenced him to undergo R.I. for Five years and to pay fine of Rs.10,000/- (Rupees Ten Lac only) and in case of default in non-payment of fine, it was further ordered that appellant shall suffer R.I. for six (6) months more. Hence, he has come in appeal.
2. Concisely the facts of the prosecution case are that on 10.6.2016 at about 0030 hours, complainant Khadim Hussain lodged the FIR stating therein that on the day of occurrence at about 1600 hours he was present in his house and the door of his house was opened. In the meantime five persons along with one woman entered into his house and pointed their pistol upon him. The accused persons robbed two laptops, cash amount of Rs.700,000/- and 08 Tola’s House Gold Ornaments and then after committing the robbery they all runaway on two motorcycles. Thereafter, FIR was lodged on the instance of complainant.
3. It appears from the record that after receiving the R&Ps of the case copies were supplied to the accused person under Section 265-C CrPC as Ex.1 and thereafter, formal charge against them was framed on 20.9.2016 as Ex.2 to which he pleaded not guilty and claims trial.
4. In order to prove the case, prosecution examined PW-1 complainant Khadim Hussain at Ex.3, who produced copy of FIR, memo of arrest, memo of site inspection, memo of recovery and memo of site inspection as Exh-3/A to Exh-3/E respectively. PW-2 Haji Ahmed examined at Ex.4. PW-3 ASI Abdul Rauf examined at Ex.5, PW-4 Inspector Hussain Bux examined at Ex.6 who produced departure and arrival entries at Ex.6/A and 6/B, police letter to FSL and FSL report at Ex.6/C and 6/D, memo of arrest at Ex.6/E, copy of DIG Order at Ex.6/F. Inspector Ali Khan examined at Ex.7 who produced roznamcha entry at Ex.7/A to 7/D. Prosecution has also process server namely Ghulam Shabbir at Ex.8, who produced non-bailable warrant under Sections 75 and 76 CrPC at Ex.8/A. These witnesses were cross examined by the counsel for appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.9.
5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.10 on 18.02.2017, in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and prayed for justice. However, accused neither examined himself on Oath nor led any evidence in his defence.
6. Learned Presiding Officer of the trial Court after assessment of evidence, documents on record and after hearing the parties, convicted and sentenced the appellant as mentioned in the introductory para of this judgment.
7. Mr. Habib-ur-Rehman Jiskani, advocate for appellant has contended that the impugned judgment passed by the trial Court is against law and facts and the learned trial Court while convicting and sentenced the appellant did not consider the evidence of the prosecution witnesses in its true perspective and according to him the evidence on record is contradictory on material particulars of the case, therefore, the same could not be safely relied upon for maintaining the conviction of the appellant; that all the mashirs/ witnesses of arrest, and alleged recovery etc. are interested person and the police has failed to associate any independent public or private mashir of the case which are in clear violation of section 103 CrPC, hence no case is established against the appellant without any shadow of doubt and entire case of the prosecution was based on weak piece of evidence; that on account of weak evidence, no conviction can be awarded to the appellant/ accused as such the prosecution had miserably failed to prove its case against the appellant beyond shadow of doubts; that the prosecution has miserably failed to prove its case beyond any shadow of doubts as such no conviction can be imposed upon the accused person/ appellant and the appellant is liable to be acquitted in this case; that the charge against the appellant was false and there are serious doubts in the case of the prosecution and the benefit of even slightest doubt must be given in favour of the appellant/ accused; that the appellant is not nominated in the FIR nor his physical features were given by the complainant and no any specific role was assigned by the complainant even at the time of recording his evidence before learned trial court which create serious doubt in the prosecution case; that the appellant was arrested after one month and two days of alleged incident but no any identification parade was held before the learned Judicial Magistrate, and at the time of arrest nothing was recovered from the possession of accused; that during the cross examination the complainant admitted that (It is a fact that the MI number of mobile is not mentioned in the FIR so also SIMs number) further admitted that (manufacturing company of laptops is also not mentioned in the FIR so also colour) further admitted that (It is fact that the recovery of magazine of pistol and bullets are also not mentioned in the FIR) very surprisingly magazine of pistol and bullets are not case property as per challan which make the whole story of prosecution doubtful; that the FIR was lodged with inordinate delay of 9 hours without any reasonable explanation it creates serious doubts in prosecution story; that the prosecution have miserably failed to produce single eye witness except complainant for the corroboration of the incident and not produced any proof of Mobile phones, laptops and receipts of gold ornaments; that the PW-3 Abdul Rauf in his cross-examination stated that the complainant reached at police station in between 2 to 3 p.m. on 09.6.2016 on the contrary the complainant stated that the incident was took place from 3 p.m. to 4 p.m. on 09.6.2016 which creates serious doubt in prosecution story; that the PW-3 Abdul Rauf stated in his cross-examination that (my duty hours on day of incident were started from 08:00 a.m. to 08:00 p.m. while I lodged FIR at about 12:30 a.m.) it shows that at the time of lodging of FIR he was not only duty which makes the prosecution story highly doubtful.
8. Mr. Abdullah Rajput, learned Deputy Prosecutor General Sindh, while opposing the aforesaid contentions, submitted that the prosecution has fully established its case against the appellant beyond the reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Hence he prayed that this appeal may be dismissed.
9. I have heard the learned counsel for the parties at a considerable length and perused the evidence and documents on record with their able assistance.
10. It is noted that in this case, prosecution in order to establish its case against the appellant has examined in all five witnesses, details of which have already been stated above. It reveals from the record the prosecution witnesses and documents produced by them are in corroboration of each other on material points of the case. The witnesses supported the memo of arrest and site inspection and registration of the case as well as recovery of case property on the pointation of accused from his house. Besides this investigation proceedings almost in toto with no material variation, but minor contradictions. The witnesses supported the case as to the commission of offence as alleged to the satisfaction of this Court. On the other hand, the appellant pleaded nothing but his innocence and led no defence nor he gave statement on oath in support of his plea of not guilty. He remained failed to establish any type of enmity between him and complainant. The appellant has also failed to shatter and rebut the case and evidence of prosecution. No material contradictions or variations came out of such process. Complainant of the case is a victim has recognized/ identified the accused at police station, when the accused shown him along with other culprits and then before the trial Court at the time of evidence. The complainant lodged FIR promptly without loss of time. The evidence of police officials has also supported the version of complainant.
11. It is argued by the learned counsel for appellant that the name of appellant is not appearing in FIR and no identification parade has been held in this case, therefore, he was of the view that false implication of the appellant in this case with due deliberation cannot be ruled out. I am not impressed with the argument of learned counsel for the appellant for the reasons that if the complainant had any malafide intention against the appellant, he would have nominated him in the FIR at the earliest. It is also noted that appellant was arrested on 11.7.2016 on the pointation and identification by the complainant at police station in presence of complainant and PW Haji Ahmed under the memo of arrest and recovery at Ex.3/B on record. It is also noted that after the arrest of the appellant, appellant led the police party to the place of Wardaat and at his pointation recovery of some looted articles was made in presence of mashirs, who in their evidence categorically implicated the accused in the commission of the offence. As observed above, some looted articles were recovered on the pointation of the appellant in presence of mashirs, as such, evidence of recovery of stolen/ looted property on the pointation of accused would be admissible in evidence under Article 40 of the Qanun-e-Shahadat Order, 1984. In this matter, the accused was identified by complainant at Police Station on 11.7.2016 and also again at the time of his evidence in Court without any mistake. I have gone through the case of Muhammad Akram Rahi and others vs. The State and others reported in 2011 SCMR 877. In this case-law, it has been held that prosecution witness can even identify the accused in Court and it is not necessary that identification parade must be held in all the cases. Again I am fortified with the case of Kanwar Anwar Ali, Special Judicial Magistrate in the matter of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018 reported in PLD 2019 SC 488. I have gone through the case of Sajid Hussain and others vs. The State reported in 2002 PCrLJ 1111, in which identification parade was held inside jail and the conviction to accused was maintained.
12. For whatever has been discussed above, I hold that prosecution has proved its case against the appellant beyond any shadow of doubt. Trial Court has appreciated the evidence according to the settled principles of the law. Judgment of trial Court requires no interference. Resultantly, the appeal is dismissed along with listed applications, if any.
13. This appeal was heard and dismissed in open Court through short order dated 06.11.2019 and these are the detailed reasons thereof.
JUDGE
asim/pa